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What is the Meaning of Health? Constitutional Implications of Defining “Medical Necessity” and “Essential Health Benefits” under the Affordable Care Act

Published online by Cambridge University Press:  06 January 2021

B. Jessie Hill*
Affiliation:
Case Western Reserve University

Extract

When the government decides to assume a major role in providing and paying for healthcare, the government also has to decide exactly what constitutes appropriate, reasonable, or essential healthcare under its program. Congress, of course, recognized this necessity when it passed the Patient Protection and Affordable Care Act (ACA), and the statute itself provides authority to the Secretary of Health and Human Services (HHS) to determine the “essential health benefits” that must be covered under the ACA beginning in 2014, both by insurers offering plans within governmentally sponsored exchanges and on the individual and smallemployer markets outside the exchanges. In a decision that was hailed as both “politically astute” and problematic for the goals that the ACA itself was supposed to accomplish, HHS shunted off the task of defining the term “essential health benefits” to the individual states.

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Article
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2012

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References

1 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1302(b)(1), 124 Stat. 119, 163-64 (2010), amended by Health Care and Education Reconciliation Act, Pub. L. No. 111-152, §§ 1302(b)(1), 2707(a) (2010) (codified at 42 U.S.C.A § 18022(b)(1) (West 2012)). This Article refers to the consolidated act, with amendments, as the “ACA.” See also generally Iglehart, John K., Defining Essential Health Benefits—The View from the IOM Committee, 365 New Eng. J. Med. 1461, 1461-62 (2011)CrossRefGoogle ScholarPubMed (describing the “essential health benefits” requirement imposed on insurance companies within and outside the exchanges).

2 See, e.g., INST. OF MED., ESSENTIAL HEALTH BENEFITS: BALANCING COVERAGE AND COSTS xi (2011) (describing the major goals of specifying essential health benefits as “balancing the comprehensiveness of benefits with their cost”); Sarah Kliff, What Counts as ‘Essential’ Health Care? White House Tells States to Decide, WASH. POST (Dec. 16, 2011, 2:51 PM), http://www.washingtonpost.com/blogs/ezra-klein/post/what-counts-as-essential-health-care-whitehouse-tells-states-to-decide/2011/12/16/gIQAzOAmyO_blog.html (describing some commentators’ concerns that comprehensiveness of coverage may be sacrificed in the interests of cutting costs).

3 CTR. FOR CONSUMER INFO. & INS. OVERSIGHT, DEP't HEALTH & HUMAN SERVS., ESSENTIAL HEALTH BENEFITS BULLETIN 8 (2011), available at http://cciio.cms.gov/resources/files/Files2/12162011/essential_health_benefits_bulletin.pdf.

4 Id. at 8, 12.

5 Id. at 10; see also ACA § 1302(b)(1).

6 See, e.g., INST. OF MED., supra note 2, at 8-5.

7 Id. at xi.

8 See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the ACA, 76 Fed. Reg. 46,621, 46,626 (Aug. 3, 2011) (amendments to be codified at 45 C.F.R. pt. 147) (announcing the interim final rule regarding coverage of preventive health services); Women's Preventive Services: Required Health Plan Coverage Guidelines, HEALTH RESEARCH & SERVS. ADMIN., http://www.hrsa.gov/womensguidelines/ (last visited Jan. 16, 2012); Steven Ertelt, Pro-Life Groups, Catholic Bishops Blast Obamacare Recommendations, LIFENEWS.COM (July 19, 2011, 5:58 PM), http://www.lifenews.com/2011/07/19/pro-life-groupscatholic-bishops-blast-obamacare-recommendations/ (noting opposition to the pre-amended rule from groups such as Americans United for Life, the Family Research Council, and the Catholic bishops).

9 Press Release, A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, U.S. DEP't OF HEALTH & HUMAN SERVS., available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last revised Feb. 2, 2012) [hereinafter Sibelius Statement] (announcing that HHS's final rule will remain the same as the interim rule). The rule (in both its interim final form and final form) makes available an exemption from the contraceptives coverage requirement for employers who meet the following requirements:

  • (1) The inculcation of religious values is the purpose of the organization.

  • (2) The organization primarily employs persons who share the religious tenets of the organizations.

  • (3) The organization serves primarily persons who share the religious tenets of the organization.

  • (4) The organization is a nonprofit organization as described in [those portions of the Internal Revenue Code pertaining to churches and their “integrated auxiliaries”].

Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the ACA, 76 Fed. Reg. at 46,626. Most, if not all, Catholic hospitals and Catholic colleges and universities would fail to meet all of these requirements. For example, most hospitals could not be considered to have the “inculcation of religious values” as their primary aim, and neither Catholic hospitals nor universities generally employ or serve primarily those who share their religious beliefs. As of the time of publication, the Obama Administration had announced its intent to further modify the rule so as to accommodate religious employers who would not meet the narrow requirements for exemption. According to a White House fact sheet, the new accommodation would ensure that “[r]eligious organizations will not have to provide contraceptive coverage or refer their employees to organizations that provide contraception,” and they would not be “required to subsidize the cost of contraception.” Press Release, White House, Office of the Press Secretary, Fact Sheet: Women's Preventive Services and Religious Institutions (Feb. 10, 2012), available at http://www.whitehouse.gov/the-press-office/2012/02/10/fact-sheet-women-s-preventive-services-andreligious-institutions. Instead, coverage for contraceptives will be offered by the employers’ insurance companies directly, and without cost, requiring no involvement by those religious employers who oppose contraception.

10 Compare Amanda Terkel, Newt Gingrich Condemns Obama Administration's Contraception Rule, Calls It a ‘War Against Religion,’ HUFFINGTON POST (Jan. 30, 2012, 12:10 PM), http://www.huffingtonpost.com/2012/01/30/newt-gingrich-obama-contraception-rule_n_1241655.html (noting the view of some conservatives that the contraception coverage rule constituted an assault on religion), with Sibelius Statement, supra note 9 (stating that the rule “will ensure that women with health insurance coverage will have access to the full range of the Institute of Medicine's recommended preventive services” and noting that “[s]cientists have abundant evidence that birth control has significant health benefits for women and their families, is documented to significantly reduce health costs, and is the most commonly taken drug in America by young and middle-aged women”).

11 Jessie Hill, B., Reproductive Rights as Health Care Rights, 18 Colum. J. Gender & L. 501, 527 (2009)Google Scholar [hereinafter Hill, Reproductive Rights].

12 See, e.g., sources cited infra note 100.

13 See, e.g., Aaron Marshall, State Issue 3 Won't Have a Big Impact on Health Care in the Short Term, Experts Say, CLEVELAND.COM, (Nov. 10, 2011), http://www.cleveland.com/open/index.ssf/2011/11/state_issue_3_wont_impact_new.html (noting that the amendment passed by a margin of two to one).

14 OHIO CONST. art. I, § 21(A)-(C).

15 Id. § 21(D).

16 H.R. 78, 129th Gen. Assemb., Reg. Sess. (Ohio 2011) (enacted); H.R. 125, 129th Gen. Assemb., Reg. Sess. (Ohio 2011) (not yet enacted).

17 Joe Guillen, Gov. John Kasich Signs 13 Bills into Law, Including Another Anti-Abortion Measure, CLEVELAND.COM (Dec. 21, 2011), http://www.cleveland.com/open/index.ssf/2011/12/gov_kasich_signs_13_bills_into.html.

18 Marshall, supra note 13.

19 See, e.g., M. GREGG BLOCHE, THE HIPPOCRATIC MYTH: WHY DOCTORS ARE UNDER PRESSURE TO RATION CARE, PRACTICE POLITICS, AND COMPROMISE THEIR PROMISE TO HEAL 11 (2011) (describing “medical necessity” as “the legal standard for health insurance coverage in the United States and throughout much of the world”); INST. OF MED., supra note 2, at xii; cf. id. at 2-5 (distinguishing “medical necessity” and “essential health benefits”).

20 See ACA, Pub. L. No. 111-148, § 1302(a)-(b), 124 Stat. 119, 163-65 (2010) (to be codified at 42 U.S.C. § 18022(a)-(b)); see also INST. OF MED., supra note 2, at 4-2 to 4-3 (discussing the meaning of “essential”).

21 See, e.g., BLOCHE, supra note 19, at 11 (characterizing the term “medical necessity” as “a malleable notion, more of a euphemism for physician habit than a scientific yardstick”).

22 ACA § 1302(b)(1); see also id. § 1301(a)(1)(b) (defining a “qualified health plan” as one that provides “essential health benefits”); id. § 2707 (requiring insurers on the small group and individual markets to provide “essential health benefits” as defined in the ACA). The ten required categories of coverage under the ACA are “[a]mbulatory patient services,” “[e]mergency services,” “[h]ospitalization,” “[m]aternity and newborn care,” “[m]ental health and substance use disorder services, including behavioral health treatment,” “[p]rescription drugs,” “[r]ehabilitative and habilitative services and devices,” “[l]aboratory services,” “[p]reventive and wellness services and chronic disease management,” and “[p]ediatric services, including oral and vision care.” Id. § 1302(b)(1)(A)-(J).

23 Id. § 1302(b)(1).

24 The ACA does define “emergency medical condition” for various purposes, however. See, e.g., ACA §§ 2707(h)(1), 2719(b)(2)(A).

25 INST. OF MED., supra note 2.

26 Id. at 4-19 to 4-20.

27 “Habilitation” is defined in the IOM report as “distinct from rehabilitation, in that it is designed to help a person first attain a particular function, versus restoring a function.” Id. at 4-4.

28 Id.

29 Id. at 5-26.

30 Id. at 5-28.

31 Id.

32 Id.; see also ACA, Pub. L. No. 111-148, § 2719(a)-(b), 124 Stat. 119, 887-88 (2010) (to be codified at 42 U.S.C. § 300gg-19(a)-(b)) (requiring availability of internal and external review processes for coverage determinations).

33 Health insurance plans under the Employee Retirement Income Security Act (ERISA) currently must cover post-mastectomy breast reconstruction. 29 U.S.C. § 1185b(a) (2006).

34 Microtia is a congenital condition, in which children are born with a partial or no external ear formation. Microtia repair generally adds no functionality. See June Wu, K., Outer Ear Construction: Is Advocacy Part of Treatment?, 12 Virtual Mentor 367, 369-70 (2010)Google ScholarPubMed, available at http://virtualmentor.ama-assn.org/2010/05/pdf/ccas2-1005.pdf (describing microtia and noting that insurance companies sometimes decline to cover one or more stages of microtia repair); Microtia Repair, FACIAL COSMETIC SURGERY AT THE UNIVERSITY OF VIRGINIA, http://www.cosmeticuva.com/html/services/microtiaRepair.htm (last visited Apr. 5, 2012) (noting that repair of the external ear does not improve any hearing loss associated with the original birth defect, and stating that insurance generally covers microtia repair).

35 Cf. ACA § 9017 (defining “cosmetic surgery and medical procedure” as a procedure that is “performed by a licensed medical professional” and “not necessary to ameliorate a deformity arising from, or directly related to, a congenital abnormality, a persona injury resulting from an accident or trauma, or disfiguring disease”) (superseded by id. § 10907(b)).

36 See, e.g., Leary, Virginia, The Right to Health in International Human Rights Law, 1 Health & Hum. Rts. 24, 25 (1994)Google ScholarPubMed; Rahman, Anika & Pine, Rachael N., An International Human Right to Reproductive Health Care: Toward Definition and Accountability, 1 Health & Hum. Rts. 401, 405-06 (1998)Google Scholar (noting that “[i]nternational organizations and scholars have made several attempts to provide content to the right to health” and to describe its minimum “core content”).

37 Constitution of the World Health Organization, Preamble, July 22, 1946, 14 U.N.T.S. 186 [hereinafter WHO Constitution].

38 U.N. Comm. on Econ., Soc. and Cultural Rights, The Right to the Highest Attainable Standard of Health: General Comment No. 14, ¶ 4, U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000); see also Gable, Lance, Reproductive Health as a Human Right, 60 Case W. Res. L. Rev. 957, 979-81 (2010)Google Scholar; Kinney, Eleanor D., The International Human Right to Health: What Does This Mean for Our Nation and World?, 34 Ind. L. Rev. 1457, 1467-68 (2001)Google ScholarPubMed (describing the “broad and inclusive” right to health outlined in General Comment 14).

39 See, e.g., Rahman & Pine, supra note 36, at 406.

40 See, e.g., Leary, supra note 36, at 28 (“Superficially, the ‘right to health’ seems to presume that government or international organizations or individuals must guarantee a person's good health. This interpretation is obviously absurd and the phrase is not given such an interpretation in the context of human rights law.”).

41 See, e.g., Soobramoney v. Minister of Health 1998 (1) SA 765 (CC) (applying the South African right to health, but holding it did not require the state to provide dialysis treatment to the plaintiff); Ann Glendon, Mary, Rights in Twentieth-Century Constitutions, 59 U. Chi. L. Rev. 519, 527-32 (1992)Google Scholar (discussing the difficulties that some countries experience in implementing a right to health); cf. 241/2001 Purohit & Moore v. The Gambia, Commc’n No. 241/2001 (Afr. Comm’n on Human & Peoples’ Rights 2003) (noting the state's obligation “to take concrete and targeted steps” to realize the right to health “while taking full advantage of its available resources”).

42 Roe v. Wade, 410 U.S. 113 (1973).

43 Stenberg v. Carhart, 530 U.S. 914 (2000).

44 Roe, 410 U.S. at 164-65; Stenberg, 530 U.S. at 930.

45 Doe v. Bolton, 410 U.S. 179 (1973).

46 Id. at 192-99.

47 See, e.g., Bader Ginsburg, Ruth, Speaking in a Judicial Voice, 67 N.Y.U. L. Rev. 1185, 11991200 (1992)Google Scholar; Siegel, Reva, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 273-79 (1992)CrossRefGoogle ScholarPubMed; see also Hill, Reproductive Rights, supra note 11, at 514-17 (questioning some criticisms of the “medical model” of abortion).

48 Roe, 410 U.S. at 165-66.

49 Id. at 166 (emphasis added).

50 Doe, 410 U.S. at 193, 197, 199.

51 Id. at 191-92.

52 Id. at 192.

53 WHO Constitution, supra note 37.

54 The Hyde Amendment was first passed in 1976 as the Departments of Labor and Health, Education, and Welfare Appropriations Act, Pub. L. No. 94-439, § 209, 90 Stat. 1434 (1976), and it has been reauthorized by each Congress since then, although the exact scope and wording have shifted over time. For the most recent version of the Hyde Amendment, see Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, § 507, 123 Stat. 3034, 3280 (2009). A brief but useful history of the Hyde Amendment is provided in Merz, Jon F., Jackson, Catherine A. & Klerman, Jacob A., A Review of Abortion Policy: Legality, Medicaid Funding, and Parental Involvement, 1967-1994, 17 Women'S Rts. L. Rep. 1, 68, 8 n.44 (1995)Google ScholarPubMed.

55 124 CONG. REC. 31917 (Sept. 27, 1978) (remarks of Sen. Edward Brooke).

56 See Volokh, Eugene, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 120 Harv. L. Rev. 1813, 1824-27 (2007)Google ScholarPubMed (describing a constitutional right to “medical self-defense” in Roe and its progeny).

57 In Women's Med. Prof’l Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997), for example, the Sixth Circuit Court of Appeals struck down Ohio's post-viability abortion ban due to its lack of an exception allowing the procedure to go forward when required by threats to the woman's mental health. Id. at 209-10. The court further noted, however, that the exception would apply only to “severe irreversible risks of mental and emotional harm.” Id. at 209. Nonetheless, the Supreme Court has not decided the issue, and a number of states—including Ohio itself—have, post-Voinovich, enacted postviability abortion bans with exceptions for severe threats to physical health only. See H.R. 78, 129th Gen. Assem. (Ohio 2011).

58 Gonzales v. Carhart, 550 U.S. 124 (2007); Stenberg v. Carhart, 530 U.S. 914 (2000).

59 Stenberg, 530 U.S. at 930-31 (explaining that “a State cannot subject women's health to significant risks … where state regulations force women to use riskier methods of abortion”).

60 Gonzales, 550 U.S. at 156.

61 Id. at 161.

62 Id. at 165-68. Presumably, the as-applied challenge would bring specific types of health conditions before the Court to be evaluated on an individual basis.

63 Stenberg, 530 U.S. at 938.

64 Gonzales, 550 U.S. at 163-67.

65 Id. at 167-68 (discussing future as-applied challenges).

66 I would like to thank Neil Siegel for suggesting this line of analysis.

67 Estelle v. Gamble, 429 U.S. 97 (1976). Of course, the claim is under the Eighth Amendment if the prisoner is in federal custody, and under the Fourteenth Amendment if the prisoner is in state custody.

68 Id. at 106.

69 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992).

70 Id. at 1059-60.

71 Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997) (quoting Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D.N.H. 1977)) (citing Mahan v. Plymouth Cnty. House of Corr., 64 F.3d 14, 18 (1st Cir. 1995); Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.1987); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996); Sheldon v. Pezley, 49 F.3d 1312, 1316 (8th Cir. 1995); Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1186 (11th Cir. 1994)).

72 See, e.g., Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal. 1995).

73 Cf. id. at 1301 (noting the government's objection that the Ninth Circuit's standard does not specify a “specific level of services” to be provided in order to avoid Eighth Amendment liability).

74 Interestingly, however, the circuits are split on whether an elective abortion is a serious enough medical need to trigger Eighth Amendment protections. Johnson, Avalon, Note, Access to Elective Abortions for Female Prisoners Under the Eighth and Fourteenth Amendments, 37 Am. J.L. & Med. 652, 659-67 (2011)Google ScholarPubMed.

75 See also Gilles, Stephen G., Roe's Life-or-Health Exception: Self-Defense or Relative-Safety?, 85 Notre Dame L. Rev. 525, 529 (2010)Google Scholar (describing the Supreme Court's “vaccillat[ion]” between different definitions of the health exception in the abortion case-law).

76 BLOCHE, supra note 19, at 24; INST. OF MED., supra note 2, at 5-28.

77 INST. OF MED., supra note 2, at 8-5.

78 BLOCHE, supra note 19, at 23.

79 Id. at 40. See generally id. at 23-40.

80 Id. at 67-70.

81 Id. at 81.

82 Id.

83 See generally Silverstein, Charles, The Implications of Removing Homosexuality from the DSM as a Mental Disorder, 38 Archives Sexual Behavior 161 (2009)CrossRefGoogle ScholarPubMed (describing the removal of homosexuality from the Diagnostic and Statistical Manual of Mental Disorders and noting the “political as well as professional” issues involved); Ouellette, Alicia, Hearing the Deaf: Cochlear Implants, the Deaf Community, and Bioethical Analysis, 45 Val. U. L. Rev. 1247 (2011)Google Scholar.

84 BLOCHE, supra note 19, at 85-88.

85 Id.

86 Id. (“We can't answer these questions without rendering judgments about rival aesthetics, public values, and what we should and shouldn't accept as fate.”).

87 Other examples might include the distinctions among circumcision, female genital cutting, and normalizing surgery on intersex infants. Though these procedures are distinct in terms of their level of invasiveness, the medical and social understandings of them are also driven by their cultural and religious meanings. See generally Chase, Cheryl, “Cultural Practice” or “Reconstructive Surgery”? U.S. Genital Cutting, the Intersex Movement, and Medical Double Standards, in Genital Cutting And Transnational Sisterhood 126 (James, Stanlie M. & Robertson, Claire C. eds., 2002)Google Scholar; Ehrenreich, Nancy & Barr, Mark, Intersex Surgery, Female Genital Cutting, and the Selective Condemnation of “Cultural Practices,” 40 Harv. C.R.-C.L. L. Rev. 71 (2005)Google Scholar; Povenmire, Ross, Do Parents Have the Legal Authority to Consent to the Surgical Amputation of Normal, Healthy Tissue from Their Infant Children?: The Practice of Circumcision in the United States, 7 Am. U. J. Gender Soc. Pol’Y & L. 87, 113-19 (1999)Google Scholar (comparing circumcision and female genital mutilation).

88 Fuchs, Victor R., The Doctor's Dilemma—What Is “Appropriate” Care?, 365 New Eng. J. Med. 585, 586 (2011)CrossRefGoogle ScholarPubMed.

89 Id. at 587.

90 Id.

91 See, e.g., Law, Sylvia A., Sex Discrimination and Insurance for Contraception, 73 Wash. L. Rev. 363 (1998)Google Scholar (arguing that Title VII requires employers to offer insurance for contraceptives); EEOC Comm’n Decision on Coverage of Contraception, Dec. 14, 2000, http://www.eeoc.gov/policy/docs/decision-contraception.html. Compare Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266, 1271 (W.D. Wash. 2001) (holding that employers are required to provide insurance coverage for prescription contraceptives if they offer otherwise comprehensive coverage of preventive drugs and services), with In re Union Pac. R.R. Emp't Practices Litig., 479 F.3d 936, 944- 45 (8th Cir. 2007) (holding that the refusal to cover contraceptives did not violate Title VII).

92 Erickson, 141 F. Supp. 2d at 1273.

93 Id. at 1273-74.

94 See supra notes 58 and accompanying text; see also Glidewell, Gail, Note, “Partial Birth” Abortion and the Health Exception: Protecting Maternal Health or Risking Abortion on Demand?, 28 Fordham Urb. L.J. 1089, 1089 (2001)Google ScholarPubMed (describing the political rhetoric surrounding the procedure and asserting that it was “one of the most contentious constitutional issues” of its time).

95 Solinger, Ricki, “A Complete Disaster”: Abortion and the Politics of Hospital Abortion Committees, 1950-1970, 19 Feminist Stud. 241 (1993)CrossRefGoogle Scholar. Historian Leslie Reagan has documented the political overtones to the debate over the legality and moral permissibility of abortion in the nineteenth century, as well. See, e.g., LESLIE J. REAGAN, WHEN ABORTION WAS A CRIME: WOMEN, MEDICINE, AND LAW IN THE UNITED STATES, 1867-1973, at 1-18 (1997).

96 Solinger, supra note 95, at 242.

97 Id. at 264.

98 The ACA requires insurers to provide a process for appealing coverage determinations, however. ACA, Pub. L. No. 111-148, § 2719, 124 Stat. 119 (2010) (codified at 42 U.S.C.A. § 18022(b)(1) (West 2012)).

99 Cf. Vacco v. Quill, 521 U.S. 793, 807-09 (1997) (recognizing the equal protection claim that a ban on assisted suicide discriminates between those who are terminally ill but not on life support and those who are on life support and can hasten death by removing devices such as feeding tubes, but applying only rational basis review and concluding that the distinction is justified). The ACA contains anti-discrimination provisions. ACA § 1557.

100 I describe the right as a “negative right to health” in Hill, Reproductive Rights, supra note 11, at 503, but that article draws on an earlier article describing the same right as a “right to make medical treatment decisions.” See Jessie Hill, B., The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines, 86 Tex. L. Rev. 277 (2007)Google Scholar [hereinafter Hill, Tale of Two Doctrines]. For other scholarship making a similar argument, see Moncrieff, Abigail, The Freedom of Health, 159 U. Pa. L. Rev. 2209, 2235-38 (2011)Google Scholar; Robertson, John A., Controversial Medical Treatment and the Right to Health Care, 36 Hastings Center Rep. 15, 15 (2006)CrossRefGoogle ScholarPubMed; Volokh, supra note 56, at 1824 (describing a constitutional right to “medical self-defense”).

101 Hill, Tale of Two Doctrines, supra note 100, at 324-45.

102 Id. at 341-45.

103 Moncrieff, supra note 100, at 2226.

104 Roe v. Wade, 410 U.S. 113, 165 (1973) (emphasis added).

105 Volokh, supra note 56, at 1826. Volokh continues: “Postviability abortions cannot be distinguished on the ground that they involve the woman's reproductive choice. After viability, the time for that choice has passed, and the right to get a therapeutic abortion is a consequence of the woman's medical self-defense right, not her abortion-as-choice right.” Id.

106 Id.

107 Id. at 1827.

108 Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986).

109 Id. at 769.

110 Id.

111 Stenberg v. Carhart, 530 U.S. 914, 931 (2000); see also Hill, Reproductive Rights, supra note 11, at 532-33.

112 Gonzales v. Carhart, 550 U.S. 124, 161 (2007). This argument is made as well in Hill, Reproductive Rights, supra note 11, at 532-33.

113 Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 278-79 (1990).

114 Jacobson v. Massachusetts, 197 U.S. 11, 38-39 (1905).

115 Andrews v. Ballard. 498 F. Supp. 1038, 1048 (S.D. Tex. 1980).

116 Abigail Alliance for Better Access to Dev. Drugs v. von Eschenbach, 445 F.3d 470, 472 (D.C. Cir. 2006), rev’d en banc, 495 F.3d 695 (D.C. Cir. 2007).

117 See, e.g., Carnohan v. United States, 616 F.2d 1120 (9th Cir. 1980); Rutherford v. United States, 616 F.2d 455 (10th Cir. 1980); Kuromiya v. United States, 37 F. Supp. 2d 717 (E.D. Pa. 1999).

118 See Volokh, supra note 56, at 1826; Hill, Reproductive Rights, supra note 11, at 531; Robertson, John A., Embryo Culture and the “Culture of Life”: Constitutional Issues in the Embryonic Stem Cell Debate, 2006 U. Chi. Legal F. 1.Google Scholar

119 Hill, Tale of Two Doctrines, supra note 100, at 331-32.

120 See, e.g., Stein, Mark S., Necessity, Not Autonomy, 86 Texas L. Rev. 15, 1617 (2007)Google Scholar (discussing the content of the negative right to health).

121 ACA, Pub. L. No. 111-148, § 1501, 124 Stat. 119 (2010) (to be codified at 42 U.S.C. § 18022(b)(1)).

122 According to the Congressional Budget Office, the ACA will result in approximately thirtyfour million additional insured Americans by 2021. This number includes roughly twenty-four million who will purchase insurance on the exchanges and approximately seventeen million new insureds under Medicaid and the Children's Health Insurance Program. The total number of forty-one million gaining insurance in these ways is expected to be offset, however, by approximately six million fewer Americans purchasing insurance directly on the individual market and about one million fewer Americans receiving coverage through their employers. CONG. BUDGET OFFICE, CBO's ANALYSIS OF THE MAJOR HEALTH CARE LEGISLATION ENACTED IN MARCH 2010, at 17 (2011) [hereinafter CBO ANALYSIS] (testimony of Douglas W. Elmendorf, Dir., Cong. Budget Office, before the U.S. H. Comm. on Energy and Commerce, Subcomm. on Health), available at http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/121xx/doc12119/03-30-healthcarelegislation.pdf.

123 Id. at 18 tbl.3.

124 Maher v. Roe, 432 U.S. 464 (1977).

125 Harris v. McRae, 448 U.S. 297 (1980).

126 Maher, 432 U.S. at 474, 480; McRae, 448 U.S. at 310-11.

127 Maher, 432 U.S. at 475-76 (footnote omitted).

128 Id. at 477 (quoting Norwood v. Harrison, 413 U.S. 455, 462 (1973)) (internal quotation marks omitted).

129 In addition, further difficulties may accompany a challenge to the administration of the Medicaid statute by state entities, such as the requirement of showing that a private cause of action exists. See, e.g., Moncrieff, Abigail R., The Supreme Court's Assault on Litigation: Why (and How) it Might Be Good for Health Law, 90 B.U. L. Rev. 2323, 2332-34 (2010)Google Scholar.

130 Moncrieff, supra note 100.

131 Id. at 2248.

132 Id. at 2249-50.

133 Id. at 2250.

134 See, e.g., Chemerinsky, Erwin, Rethinking State Action, 80 Nw. U. L. Rev. 503, 503-04 (1985)Google Scholar (“There still are no clear principles for determining whether state action exists.”).

135 Moose Lodge No. 107 v. Irvin, 407 U.S. 163 (1972).

136 See, e.g., Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961).

137 Maher v. Roe, 432 U.S. 464, 474-75 (1977).

138 See id. at 480.

139 CBO ANALYSIS, supra note 122, at 17-18; cf. Kronick, Richard & Gilmer, Todd, Insuring Low-Income Adults: Does Public Coverage Crowd Out Private?, 21 Health Aff. 225, 235-37 (2002)CrossRefGoogle ScholarPubMed (concluding, with some uncertainty, based on evidence from four states, that expansion of public health insurance programs may result in “crowding out” of private insurance, meaning that some of those newly insured individuals would have otherwise been covered by private insurance but for the public programs).

140 CBO ANALYSIS, supra note 122, at 17-18.

141 Prah Ruger, Jennifer, Fair Enough? Inviting Inequities in State Health Benefits, 366 New Eng. J. Med. 681, 682 (2012)Google Scholar (arguing that differences in state-mandated health benefits will result in inequalities and that, instead, everyone should “have access to the same high-quality goods and services” in accordance with principles of medical necessity, “within the scope of national standards”).

142 See, e.g., Oechsner, Troy J. & Schaler-Haynes, Magda, Keeping It Simple: Health Plan Benefit Standardization and Regulatory Choice Under the Affordable Care Act, 74 Alb. L. Rev. 241, 266 (2010)Google Scholar (suggesting that “[t]he general rule of ‘federal floor, not state ceiling’ may be tested in the area of health benefits”).

143 SARA ROSENBAUM ET AL., AN ANALYSIS OF THE IMPLICATIONS OF THE STUPAK/PITTS AMENDMENT FOR COVERAGE OF MEDICALLY INDICATED ABORTIONS 5 (2009), available at http://www.gwumc.edu/sphhs/departments/healthpolicy/dhp_publications/pub_uploads/dhpPublication_FED314C4-5056-9D20-3DBE77EF6ABF0FED.pdf.

144 See supra note 4 and accompanying text.

145 MARK YUDOF, WHEN GOVERNMENT SPEAKS 158-73 (1983); Shiffrin, Steven, Government Speech, 27 Ucla L. Rev. 565, 595 (1979)Google Scholar.

146 YUDOF, supra note 145, at 168-69.

147 Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791 (Can.).

148 See generally Hill, Reproductive Rights, supra note 11, at 522-24.

149 In fact, some estimates find that the number of individuals insured through their employers will remain roughly the same after the ACA comes into full effect. See, e.g., MATTHEW BUETTGENS, BOWEN GARRETT & JOHN HOLAHAN, AMERICA UNDER THE AFFORDABLE CARE ACT 10 (2010), available at http://www.rwjf.org/files/research/71555.pdf.

150 See generally supra Part III.

151 The ACA explicitly excludes abortion from the definition of “essential health benefits.” ACA, Pub. L. No. 111-148, § 1303(b), 124 Stat. 119 (2010) (to be codified at 42 U.S.C. § 18022(b)(1)). In addition, states may prohibit insurance companies that offer plans on state-sponsored exchanges from covering abortion. Id. § 1303(a).

152 The ACA contains a provision allowing states to prohibit the sale of insurance for abortions on state-sponsored exchanges and excluding abortion from the definition of essential health benefits. Id. § 1303(a), 1303(b)(1)(A). In addition, it imposes extremely stringent requirements regarding the segregation of funds by any qualified health plan seeking to offer insurance for abortions other than those for which federal funding is permitted under the Hyde Amendment (such as lifesaving abortions). Id. § 1303(b).

153 See, e.g., Robertson, John A., Abortion and Technology: Sonograms, Fetal Pain, Viability, and Early Prenatal Diagnosis, 14 U. Pa. J. Const. L. 327, 377 (2011)Google Scholar.

154 See generally Abrams, Jamie R., From “Barbarity” to Regularity: A Case Study of “Unnecesarean” Malpractice Claims, 63 S.C. L. Rev. 191, 227-34 (2011)Google Scholar.

155 Sixteen states and the District of Columbia have legalized medical marijuana. Medical Marijuana, PROCON.ORG, http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881 (last visited Feb. 15, 2012).

156 But cf. United States v. Cannabis Cultivator's Club, No. C 98-0085 CRB, 1999 WL 111893, at *2-3 (N.D. Cal. Feb. 25, 1999) (rejecting the plaintiffs’ claims of a substantive due process right to access medical marijuana).

157 One might argue, for example, that legislatures are more competent than judges at making sensitive, fact-intensive decisions such as those that may be required in the context of healthcare policy and allocation of healthcare resources. At the same time, there is an argument to be made that judges are better suited to make decisions about individual healthcare entitlements. I discuss this issue at greater length in Hill, Tale of Two Doctrines, supra note 100, at 332-41.

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